Sept. 2, 2009 – The Wisconsin Supreme Court will consider this fall whether the public’s right to know what its government is up to extends to reading the personal emails government employees sent from work.

Public employees argue that the state’s Public Records Law should only give access to items substantially connected to government business. But if these emails are considered “records,” privacy interests should outweigh the presumption in favor of disclosure.

Parties supporting release of the emails counter that the Public Records Law broadly defines “record” to include these communications. They argue that court precedent require their release despite asserted privacy concerns.

All sides agree that this is a case of first impression in Wisconsin and ask the justices to give guidance.

A ‘fishing expedition’

The Wisconsin Rapids School District received a public records request from Don Bubolz, a citizen, seeking emails “from the computer [the teachers] use during their school work day” from March 1, 2007 through April 13, 2007.

Five of the teachers – Karen Schill, Traci Pronga, Kimberly Martin, Robert Dresser, and Mark Larson – objected to the release of purely personal emails that did not relate to the school district or to any official acts of government. The district acknowledged that none of the teachers had used its email inappropriately or violated its computer policy by sending personal emails.

Bubolz argued he had a right as a taxpayer to see the teachers’ personal emails because the taxpayers paid their salaries and funded the equipment. He added that the teachers’ emails were official acts because they were emailing on taxpayer time with taxpayer equipment. Moreover, Bubolz said he was on a “fishing expedition” to see if the teachers violated school policies by using their work email to discuss school board elections.

The circuit court rejected the teachers’ arguments that the personal emails were not “records” under the Public Records Law. The court further held that the privacy and reputational rights of Wisconsin citizens in their personal emails did not outweigh the public interest in disclosure. The teachers unsuccessfully argued that the school district should at least redact purely personal text and any personal email addresses prior to release.

Earlier this summer, the supreme court accepted the teachers’ appeal after the Wisconsin Court of Appeals certified the case in April. The teachers seek reversal of the circuit court decision and an order to enjoin the school district from releasing their personal emails.

Meaning of ‘records’

In briefs filed with the supreme court, the teachers argue that the plain language of Wis. Stat. § 19.32 (2) does not reach public employees’ personal emails.

Specifically, they cite the portion of the statute that states “record” does not include “drafts, notes, preliminary computations and like materials prepared for the originator’s personal use.” These emails, the teachers argue, were for “personal use” because messages regarding child care arrangements and similar matters did not relate to school district business, and the school district did not rely on them to make business-related decisions.

But the school district, defending its decision to release the emails, disputed the teachers’ interpretation. “The District could not conclude that the emails in question were ‘prepared for the originator’s use’ as those emails were communicated to other persons in their final form,” the district argued. “Once a draft or preliminary computation is circulated and reviewed or used by others – it becomes a record,” the district said, citing Fox v. Bock, 149 Wis. 2d 403 (1989).

The teachers challenged the district’s reading of Fox. “In Fox, the Court found that a liability study prepared for the corporate counsel’s office was a public record, not a draft, even though it needed minor corrections, largely because the county relied upon it in taking official action,” the teachers explained.

“In this case, unlike Fox, the District has not used the emails for any business purpose, nor has it taken any official action based on the emails’ contents,” the teachers continued.

Further, the teachers argued that merely sending a personal email to another does not transform an employee’s email to her spouse regarding groceries into a business record. Rather, the determinative factor is whether the email contains a “substantial nexus” to government business.

Without a “nexus” requirement, the teachers warn of the “absurd result that ‘[e]very not made on government-owned paper, located in a government office, written with a government-owned pen, or composed on a government-owned computer would presumably be a public record.’”

But the school district argued that “personal” modifies the word “use” so that the statute is “not content driven, but rather purpose driven.”

“When an email is sent out to another individual for the purpose of communicating something, whether it is business strategy or what to have for dinner that evening, the communication is intended for the ‘use’ of more than just its originator,” the district argued. “The legislature could have modified the language further to make it clear that the content must relate to the originator’s public position. It did so with respect to personal property of a custodian, noting that such property was not a record, provided that it also has ‘no relation to his or her office.’”

Public interest in monitoring employees

The school district argued that the mere existence of such personal emails could be a matter of public interest.

While a public employee’s email to a spouse concerning child care might not be of much public interest by itself, the district asserted, it might “if taken with other such personal emails … illustrative of excessive personal usage.”

“Whether engaged in a fishing expedition or not, the public records law contemplates the facilitation of a ‘watchdog public’ with access to the ‘affairs of government,’” the district argued. “The question is whether that watchdog function extends to monitoring compliance with reasonable personal email use policies or just to communications purely related to completing the functions associated with employment.”

The district drew an analogy to Zellner v. Cedarburg School District, 2007 WI 53, in which a newspaper reporter obtained through the Public Records Law a memorandum and compact disc containing adult images and internet searches a school teacher allegedly viewed and conducted on his school computer.

But the teachers disputed the comparison, pointing out that their computer usage is not involved with allegations of misconduct as in Zellner.

“The District argues that Zellner established a significant public interest in monitoring how a public employee conducts himself on the job, but it misconstrues the holding in that case,” the teachers argue. “In Zellner, the Court found a public interest in receiving information regarding allegations of teacher misconduct and how the government handled disciplinary actions.”

A “watchdog” function, if it exists in the Public Record Law, must have a limiting principle, the teachers argued. “If not, once allowed, where does the monitoring end?” they asked.

“Can the public monitor the contents of a personal phone call made at work? Can it receive tapes of personal voicemails that are often now stored electronically by public employers? Should it be provided videotapes from security cameras that record employees in the break room?” the teachers asked.

Balancing test

If the emails are considered “records,” the teachers argue that the public policies favoring limited access or nondisclosure outweigh the presumption of access, citing Hempel v. City of Baraboo, 2005 WI 120.

“Mr. Bubolz demonstrates no legitimate public interest in obtaining the Teachers’ personal emails,” the teachers assert. “In comparison, there is a significant public interest in safeguarding Wisconsin citizens’ privacy in purely personal affairs, increasing employee efficiency, maintaining employee morale, and avoiding a significant burden on governmental.”

But the district cited Zellner’s pronouncement that the presumption in favor of disclosure “is one of the strongest declarations of policy to be found in the Wisconsin statutes.”

“To overcome this presumption, there must be compelling public interest in maintain the confidentiality of the requested materials,” the district said, citing Local 2489 v. Rock County, 2004 WI App 210.

“The court must look at the public detriment arising out of the failure to protect the individual employee’s personal privacy interests,” the district wrote, noting court precedent has found personal embarrassment is not enough.

Further, the district noted that the supreme court recently stated in Milw. Journal Sentinel v. Wisc. Dept. of Admin., 2009 WI 79, that the balancing test does not lend itself to “blanket exceptions from release.” Thus, the “categorical exclusion urged by Appellant appears inconsistent with this Court’s precedent and with evidence of public policy found in the Wisconsin statutes,” the district wrote.

District’s monitoring policy

The district argued that the teachers’ privacy interests are weakened because they were aware of its computer policy that warned users of email monitoring.

But the teachers said the district’s policy of monitoring network activity stated “the Network manager will not routinely inspect the contents of e-mail sent by district employees.” Additionally, the teachers said that while the policy instructed users not to assume information transmitted is confidential, “the Computer Policy says nothing about the Public Records Law.”

“It is one thing to email with the understanding that the employer’s computer tech might monitor your emails; it is quite another to imagine a private citizen obtaining your personal emails and your loved-ones’ personal email addresses for potentially unlimited public disclosure,” the teachers argued.

The teachers asserted that the district’s interpretation of the law is contrary to legislative intent. Quoting a Legislative Reference Bureau analysis of the Public Records Law at the time of its enactment, the teachers wrote, “[T]he LRB found that ‘authorities must withhold any record containing information concerning the private life of an individual which would be of no legitimate public concern, except from the subject of the record.’”

The Wisconsin Supreme Court is scheduled to hear oral arguments in this case on Nov. 10.